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HCAL 3014/2018
[2021] HKCFI 2681
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3014 of 2018
BETWEEN
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Mohammed Sahabaz |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant last arrived at Hong Kong on 27/11/2013. He was permitted to stay until 11/12/2013. He surrendered to the Immigration Department on 17/2/2014 for overstaying. He lodged the present non-refoulement claim on 4/4/2014.
Background [1]
2. The applicant was born on 15/10/1991 in Kolkata, West Bengal, India. He was educated up to class 8. He worked as a salesman for 7 years. He was single. His parents and a brother were in India. They have no association with any political party. His uncle (“Raju”) had links with the “BJP”. [2]
3. All along, his immediate family, his uncle and his cousin (“Shaik”) lived with his grandmother at house at 1F, Ibrahim Rd., Kolkata. In 2013, his grandmother planned to split the ownership of her house between him (30%) and his uncle (70%). His uncle was not happy. Arguments ensued. His uncle even forced his family out of the house and threatened to kill him if he refused to give up his share. His family moved to another house at 1E Ibrahim Rd.
4. His parents advised him to leave India for the time being. He left Kolkata and arrived at Hong Kong by air on 26/9/2013. He went to Shenzhen for 9 days. He returned to Hong Kong and departed for Kolkata on 5/10/2013.
5. One day in November 2013, his uncle invited him to discuss the ownership of the house. Also present were his uncle’s 2 friends who claimed to be workers of “BJP”. He refused to give up his share. He scuffled with his uncle. His uncle threatened to kill him. He reported this incident to the police who refused to investigate.
6. Since then, he was in great fear and decided to go to Hong Kong to avoid his uncle. He flew to Hong Kong on 12/11/2013. He stayed for 5 days and returned to India on 16/11/2013.
7. On one occasion, his uncle came and asked about him. His father refused to disclose his whereabouts. His uncle assaulted his father. He finally decided to leave India to seek refuge. He took a flight to Hong Kong on 27/11/2013.
8. Recently, his father had moved out of Kolkata. His family moved to another place to avoid harassment by his uncle.
9. He asserted that the police were corrupt. They favoured the “BJP” people. He had no idea about complaint channels such as CVC [3] or the Centralized Public Grievance Redress and Monitoring System.
10. He could not relocate as the “BJP” had an extensive network. It was not safe for him even in Delhi or Mumbai.
The Decision of the Director
11. The Director pointed out the following to conclude that the future risk of harm was low [4]:
(a) The applicant was only threatened by his uncle. He did not suffer any injury. His family was never assaulted except that his father was slapped once shortly before he decided to leave India. As a whole, any ill-treatment inflicted on him did not amount to a minimum level of severity. The evidence did not support there would be future risk of harm.
(b) Although he was threatened by his uncle, there was no intention that the latter would kill or harm him. There was only a scuffle in 2013 during the discussion with his uncle. His assertion of harm if he returned to India was not real.
(c) His uncle held no position in the “BJP”. There was no evidence that the “BJP” was behind this dispute. There was no evidence that his uncle had the resources to locate him all over India.
(d) He had left and returned to India twice in September and November 2013. His family lived at a house near his uncle. There was no indication that he was in imminent danger for his life. He was never accused, charged or detained by the police or the State.
(e) The dispute in the ownership of her grandmother’s house was a private matter. There was no evidence of any involvement of public officials or the “BJP”. He was neither targeted by the “BJP” nor the government. There was no indication that the government would not discharge its duties.
(f) There were COI reporting corruption in all sectors. There was abuse of power in the police. Their work was ineffective. There was human rights abuse in the police. On the other hand, there were COI which showed measures to improve efficiency in the police. A complainant might take his case further to the Superintendent or even a Magistrate on failure to investigate. The NHRC [5] was tasked to investigate human rights violations and promote public awareness. There was a government portal receiving complaints. The CVC tackled corruption. There were positive measures to uphold the rule of law. The Director was satisfied that there was reasonable State protection.
(g) The Director found that there was reasonable opportunity for internal relocation. The Constitution allowed internal movement. India was a large country with a huge population. Delhi and Mumbai were reasonable options for relocation. It would be very difficult to locate him. It would not be unduly harsh for him to relocate given his work experience.
12. The Director dismissed his claim on all grounds on 29/1/2018.[6]
The Decision of TCAB
13. The applicant attended an oral hearing on 7/11/2018. The TCAB rejected the appeal on 24/12/2018. The adjudicator opined that there was harassment from his uncle arising from the share in ownership of his grandmother’s house. There was dispute as the applicant refused to give up his 30% share. The applicant also asserted that the father of his fiancée in India threatened to kill him as he had a girlfriend in Hong Kong [7]. The adjudicator found that there was no substantial ground to believe that the applicant would face a real risk of harm for the following reasons:
Torture claim
(a) The ‘severe pain and suffering’ must be intentional and inflicted for one of the purposes in the definition of torture.[8] It must be inflicted by the State or its agent. The evidence showed that his fear was from a private person. No public official was involved. There was no evidence that the police in general failed to exercise due diligence to investigate or punish offenders. The harm which the applicant feared, either from his uncle or the father of his fiancée, was not within the definition of ‘torture’. There was no evidence of gross, flagrant or mass violations of human rights in India. Torture claim failed. [9]
BOR 3 risk
(b) The TCAB accepted that there might be a small risk that the applicant would face harm from his uncle and the father of his fiancée. However, the TCAB found that there were reasonable relocation options to Bangalore, Delhi and Mumbai. The TCAB did not accept that his uncle or the father of his fiancée could have located him. The TCAB did not accept any real risk of harm. This ground failed. [10]
BOR 2 risk
(c) The applicant was not charged with any offence. He would not be subject to any death penalty nor arbitrary deprivation of life. There was no evidence that the human rights condition was so dire to threaten his right to life in India. This ground failed. [11]
Persecution risk
(d) The adjudicator pointed out that the reasons for his uncle and the father of his fiancée to harm the applicant was financial and private in nature. It was not one of the Convention reasons. The COI supported the conclusion that there was a functioning system of law and order in India which was effective. There was reasonable State protection. There were reasonable relocation options. The persecution risk ground failed. [12]
14. Given the analysis above, the adjudicator found that the applicant failed to establish the non-refoulement claim on torture risk, BOR 3, BOR 2 and persecution risk.
Judicial review
15. The applicant applied for leave to apply for judicial review on 31/12/2018. In his supporting affirmation, he did not point out any error in the decision of the TCAB.
16. In judicial review, the task of this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
17. In my view, the adjudicator had fairly conducted the oral hearings. The analysis of the evidence was thorough and correct. I agree with him that the evidence did not support a real risk of harm for non-refoulement protection albeit there might be a small risk.
18. In my judgment, there is no error of law or procedure. The decision is reasonable.
Conclusion
19. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 8th day of September 2021
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(Mike MAK) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
On 8 September 2021
Mohammed Sahabaz
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 September 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10212/18/2/96/IN1929
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3395/17
(formerly RBCZ/3001097/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 29/1/2018, §§6—9.
[2] Bharatiya Janata Party.
[3] Central Vigilance Commission.
[4] Decision of the Director dated 29/1/2018, §§10—19.
[5] National Human Rights Commission.
[6] Decision of the Director dated 29/1/2018, §§20—36.
[7] Decision of the TCAB dated 24/12/2018, §18.
[8] S. 37U (1) of the Immigration Ordinance. For obtaining confession, punishing or intimidating a claimant or a third party.
[9] Decision of the TCAB dated 24/12/2018, §§37—47.
[10] Decision of the TCAB dated 24/12/2018, §§48—59, 65—66.
[11] Decision of the TCAB dated 24/12/2018, §§69—70.
[12] Decision of the TCAB dated 24/12/2018, §§60—68.
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